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Why DNR’s New High Capacity Well Review Process Poses an Explicit Delegation Problem

As we previously blogged, DNR announced on June 2nd that it intends  to revise its high capacity well review process in response to Wisconsin Attorney General Josh Kaul’s letter withdrawing OAG–01–16. But why does it matter?

Administrative agencies only have authority if the Wisconsin legislature explicitly confers it on them. Wisconsin law explains that statutes “containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer…or augment the agency’s rule-making authority.” Wis. Stat. § 227.11 (2)(a)1. A statute “describing the agency’s general powers or duties” also does not confer authority. Wis. Stat. § 227.11 (2)(a) 2.

Here is the problem: DNR’s bases its new high capacity well review process on its authority in Wis. Stat. §§ 281.11 and .12. But Wis. Stat. §§ 281.11 and .12 are, by their very titles, “Statement of policy and purpose” and “General department powers and duties.” And under Wis. Stat. § 227.11 (2)(a)1 and 2, that means they aren’t explicit delegations of authority.

Thus, AG Kaul’s letter encourages DNR to use authority the legislature did not give them. And by acting on it, DNR will be regulating beyond what Wisconsin citizens agreed to let them through their elected officials.

For more, see Our Analysis of DNR’s High Capacity Well Review Process or read GLLF’s letter to Kaul on May 11 questioning “the legal basis of [his] decision and the appropriateness of issuing such decision considering the pending Supreme Court cases on this matter.”